If the Government Plans to Hold Salim Hamdan Indefinitely, Despite His Sixty-Six Month Sentence, What Was the Point of Putting Him on Trial?
	By MICHAEL C. DORF
	Monday, Aug. 11, 2008

What, then, was the point of putting Hamdan on trial in the first place? The answer is not entirely clear. In this column, I will offer a number of possible explanations, before concluding that the Hamdan case and the broader experience of military custody since 2001 demonstrate the need to re-think the relationship between military detention and criminal punishment.

Military Custody

Hamdan was the first Guantanamo Bay detainee to be tried by a military commission. Although the Bush Administration originally claimed the authority to detain anybody it deemed an “enemy combatant” indefinitely, without any sort of legal process, the Supreme Court’s 2004 decisions in Hamdi v. Rumsfeld and Rasul v. Bush led the Administration to adopt a formal military process—known as the Combatant Status Review Tribunal or CSRT—for determining whether any given detainee is in fact an enemy combatant subject to military detention. Because of procedural limitations of the CSRT process, earlier this year, in Boumediene v. Bush, the Supreme Court held that Guantanamo Bay detainees have the right to file habeas corpus petitions in civilian courts to challenge the legal and factual basis for their detention.

The Boumediene decision governs the procedures available for deciding whether a particular detainee is an enemy combatant. But what is the substance of that classification? In short, an enemy combatant is someone who was fighting against the United States or its allies in Afghanistan or elsewhere. The point of the CSRT process, as supplemented by civilian habeas corpus hearings, is to sort out fighters—who may be detained—from innocent third parties, such as farmers, tourists, and journalists, who have been falsely identified as fighters.

Much has been written (including an early, and in retrospect somewhat naïve, column by yours truly) about the difference between lawful and unlawful enemy combatants. To oversimplify somewhat, a lawful enemy combatant—someone who abides by the law of war—is simply an enemy fighter. In wars governed by the Geneva Conventions, lawful enemy combatants may be detained for the duration of hostilities between the warring powers, but are entitled to humane treatment and may not be interrogated (beyond the requirement of providing name, rank, and serial number). We now know that the government sought to treat al Qaeda and Taliban captives as unlawful enemy combatants precisely so that it could interrogate them—although U.S. treaty obligations forbid torture and cruel, inhuman, or degrading treatment even as to unlawful enemy combatants, making the Bush “harsh interrogation” policy illegal even by the Administration’s own logic.

For present purposes, however, we can set aside the distinction between lawful and unlawful enemy combatants. The key point here is that an enemy combatant, even if lawful, can be detained for the duration of a war.

Military Trial

In addition to detaining enemy combatants, a nation at war may choose to try some number of detainees for criminal acts, typically war crimes. Depending on the circumstances, such a trial could occur before an international tribunal, like the one the international community will use for Radovan Karadzic; in a civilian court, like the one the United States used for Zacarias Moussaoui; or before a country’s military courts, as occurred in Hamdan’s case. But given that a detainee is already being held as an enemy combatant, what purpose does a military trial serve?

In the context of conventional warfare, a military trial subjects the convicted war criminal to punishment he would not otherwise face. Consider the case of Nazi war criminals tried at Nuremberg. Because the trials occurred after Germany had surrendered, there was no longer a legal basis for holding German combatants as prisoners of war. However, conviction of war crimes could and did justify sentences extending long after the end of World War II. Convictions at Nuremberg also led to death sentences.

It is thus easy to see one reason why the Bush Administration would want to try some captives whom it might otherwise simply detain as enemy combatants: High-ranking al Qaeda members, such as Khalid Shaikh Mohammed, could receive the death penalty if convicted by military commission.

Hamdan was not charged with a capital offense. In principle, his trial nonetheless offered the government something tangible to which it might not otherwise be entitled: the ability to detain him for life, if he received a life sentence. However, the Bush Administration believes that it is entitled to detain Hamdan indefinitely anyway, because of the unconventional nature of the current war.

There is no realistic prospect that al Qaeda will surrender in the way that Germany surrendered to end World War II in Europe. Even if Osama bin Laden were to be apprehended and even if he were to then publicly disavow jihad, that would hardly end the threat from radical Islamic terrorism. Other individuals and groups would undoubtedly emerge to continue the nefarious fight. Accordingly, if detainees like Hamdan must await the cessation of hostilities to be entitled to be released, then they can be held for their entire lives, and trying them on non-capital charges serves no immediate practical purpose.

Does Hamdan Himself Pose an Ongoing Threat?

In tacit recognition that the analogy to conventional war has its limits, the Administration has been releasing detainees notwithstanding the continuation of hostilities. Some detainees have been released because they never posed a threat in the first place; others have been sent to detention in their home countries; and still others have been released upon a determination that they no longer pose a grave threat.

In theory, Hamdan’s acquittal on conspiracy charges and his material support conviction have no necessary bearing on whether he poses an ongoing threat. Yet given the nature of the evidence and the military jury’s verdict, the matters appear closely intertwined in practice. In essence, the jurors found that as bin Laden’s driver, Hamdan had sufficient awareness of al Qaeda’s goals and operations to be held accountable for aiding them, but that his role was relatively peripheral.

Further, Hamdan has said that he regrets having aided bin Laden and that he simply wants to return to his family. He could be lying, but even if so, the threat posed by Hamdan seems no greater than the threat posed by thousands of people at large in western Pakistan and elsewhere who are currently supporting al Qaeda.

Is Indefinite Detention Permissible?

There is, to be sure, an apparent irony here. The government was under no obligation to try Hamdan before a military commission. Now that the government has done so and obtained a conviction (even if on the lesser charge), why should the government have fewer options than it would have had if Hamdan had never been tried?

That very question falsely assumes that the government would have been entitled to detain Hamdan, and others like him, indefinitely, absent a military trial. That assumption is false because the analogy to conventional war is a poor fit for terrorism suspects. Suppose that a CSRT and a federal court in a habeas proceeding determine that some detainee was in fact an enemy combatant. Those determinations justify his initial detention, but in an era of a perpetual war on terror, due process should require something more for continued detention.

What should that something more consist of? Certainly, enemies found guilty of war crimes by fair trials and then sentenced to life imprisonment can be held for life, but where a detainee has either served his sentence, or was never charged with a crime in the first place, the government ought to have to prove that he constitutes an ongoing threat.

Our civilian law provides an analogy. In general, we do not permit the government to hold people in custody based on the fear that they will commit future bad acts. Detention (in the form of imprisonment) follows conviction for a past crime. There is, however, an exception for people who, by reason of a mental disease or defect, pose a serious threat to the safety of others or themselves. Such persons may be civilly committed based on a showing of such illness and of such a threat by clear and convincing evidence.

Under the Supreme Court’s 1997 ruling in Kansas v. Hendricks, even someone who has served his time for a crime may subsequently be held in civil confinement based on the fear that he poses an ongoing danger—so long as the due process requirements for civil commitment are satisfied.

By analogy, we might say that enemy combatants held in connection with the war on terror have a due process right to periodic reevaluation of the threat they pose. How often such reevaluation would have to occur, and exactly what standards ought to satisfy due process, would need to be worked out. But we should be able to say that the Bush Administration’s position is untenable. Core principles of legality should forbid the government from presuming that, in virtue of having once posed a threat to the United States, an enemy combatant forever thereafter poses such a threat. Indeed, one can find hints of just such a prohibition in the Supreme Court’s detention decisions over the last several years.

Will the Government Release Hamdan?

Left to its own devices, the Bush Administration would have afforded its war-on-terror detainees very little in the way of due process. Only under pressure from the Supreme Court did Congress and the Administration fashion the existing system of CSRTs and military commissions, and even this system is deeply flawed. Despite those flaws, the basic decency of the American service members who served on Hamdan’s military jury led them to render what appears to be a fair verdict. The government can score an important propaganda victory by releasing Hamdan when his sentence has run.

Whether the Bush Administration will in fact seize the opportunity granted it, and release Hamdan, remains to be seen, but fortunately, that question will not long be relevant. Hamdan’s sentence will be completed just weeks before Inauguration Day 2009. The next President should move quickly to reform the jerry-rigged system of combatant status review and military commissions.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.